Tribal Sovereignty and Legal Recognition: A Conversation with Professor Elizabeth Hidalgo Reese

This interview was conducted in Spring 2025. It has been edited for brevity and clarity.

HULR: As a policy advisor and scholar on tribal sovereignty, civil rights, and constitutional law, your work offers powerful insights into Indigenous representation and the evolving relationship between tribal nations and the U.S. government. Could you share what initially drew you to these areas of law and how your background has inspired your commitment to ensuring that Native communities are meaningfully represented within the American legal system?

ER: I am from Nambé Pueblo, New Mexico, a small Indian reservation just north of Santa Fe. I was born there in an adobe brick house built by my great-grandparents. It was where my grandparents lived and had my mom, and where my mom lived when she had me. Our community and way of life were always — and still are — key parts of my identity and how I see the world. It was what was normal to me for the early parts of my life until we moved off the reservation. I think that for a lot of Native children, you go through this process of realizing that who you are as a Native person is unlike everyone else in the United States. You come to understand that you are different, and that there is something really special about your tribal identity. You start noticing those things about your life that are Native. For me, as I was realizing all of that, it became so clear to me how precious all of that was — but also how fragile and contingent that identity is. The fact that our religion survived government persecution in the early 1900s and more persecution by the Spanish Crown and the Catholic Church is incredible. For my children to one day be able to grow up with that world and identity as Nambé tribal citizens and cultural and religious participants, I needed to do my part to keep protecting it, just like my ancestors had done their part to keep protecting it. In the United States, that work has often meant thinking about law, policy, and the different levels of power within the United States.

HULR: In your 2024 article “Tribal Representation and Assimilative Colonialism,” you suggest that the exclusion of tribes from the U.S. political structure has been shaped by concerns rooted in race and fears about Native sovereignty. Do you think those concerns played a role in the historical denial of congressional delegates for tribal nations? If so, how might they help us understand that ongoing exclusion, particularly in light of the current recognition of 574 tribes?

ER: I think it is even more than that. It is more than just the denial of some of the delegates for the tribes that have specific treaty rights to delegates, like the Cherokee. Being a tribal law scholar and a legal academic who has experience working with tribes, it is striking just how deep the cultural forces run that create this delegitimized, primitive view of tribal nations. When I talk to colleagues about tribes and all the real government things that they do, they usually understand it only in an abstract way. Then, I do presentations that involve pictures of tribal courthouses, tribal legislative chambers, tribal police, trash pickup, and government building permits from tribes. Only then do people will tell me that it just now clicked that tribes are real governments. I try to not let my head explode, but that is the reality. You say “tribe,” and people hear this inferior, negligible thing — and not the real body of government that tribal nations are. Many of my conversations and work since then involve pushing back against that all the time. Part of what is going on is that people do not even think about how weird it is that tribes are not represented in Congress because they just do not think that tribes are real governments — or even think of tribes at all. The more that people see, the more they will realize just how democratically delinquent the lack of representation for tribes is, and so many other parts about the way that federal Indian law and this country work right now. Tribes do not get nearly the respect or power they ought to have, and I think people would generally agree with that once they accept that tribes are sovereign entities.

HULR: Continuing with your argument in that article, your concept of “democratic mismatch” highlights how tribal citizens are governed by federal Indian law (a body of U.S. federal law that regulates the relationship between tribal nations and the federal government) but lack meaningful representation at the federal level. What kinds of structural reforms might help address this imbalance?

ER: I believe the kinds of changes that would really address the issue require a constitutional amendment. For starters, we should give tribes some number of seats in Congress, either individually or collectively, or create some other kind of structural place for tribes and tribal voices within both Congress and the executive branch. But because the best answer is a constitutional amendment, it’s also the most difficult reform to be implemented. As a scholar deliberating on what to write in that article, I had to ask myself: Do I give the easier but less intellectually honest answer (for example, suggesting that the president issue an executive order authorizing a domestic ambassador from Indian Country to hold certain powers), or do I advise that the more intellectually honest answer is bigger than that? I do think it is a little bit of both. But I wanted to prize both intellectual honesty and also thinking big. In my opinion, part of why we get stuck with such limited solutions to some of Indian Country’s problems is because we either think too theoretically or too practically and not aspirationally in a strategic way. I hope to push things in the aspirational direction because it opens up a number of categories of possibilities that do seem reasonable — even if they are less than the full aspiration — as opposed to far-removed theories about how things should operate.

HULR: How could these reforms account for the political and legal distinctiveness of tribal nations, rather than relying on frameworks designed for states or territories?

ER: It really depends. One of the things I want to be careful about, as a scholar, is not answering that question for tribes because I think a lot of what has gone bad in American history, and in U.S. federal policy towards tribes, has happened because we have been answering things for tribes instead of letting tribes answer for themselves. I think that one big answer to that question is: I should not be answering this question. What I can be is someone who sets out ideas and options for tribes to consider. It is hard because tribes disagree, and they are different and unique. In some ways, that is also how the American people are, as there are lots of disagreements within states, too. One idea that I like is the way that New Zealand does this with their Maori roll – where you can opt into the Maori roll, or the general roll, and then seats are apportioned based on population for each roll. Part of what I like about that is it follows some of the same grouping together of people in geographic ways that we currently have for Congress, and it makes sure that tribes would not have, or tribal citizens do not have, double representation because they would have to opt out of voting for senators and congressional representatives and instead opt into a tribal roll with other tribal citizens, probably nearby. I think giving people that choice is a really cool idea, because you have to balance two things. You have to balance representation – what is in the tribe’s interest and what is in the tribal citizens’ interest – and those two things might not be the same thing either. So, it is a democratic design question, but one we can have solutions to, and we can have imperfect solutions. One of the things I think tribal governance can teach American governance is that you can get it wrong the first time, and then you just fix it. You can have an iterative process of perfecting how a government runs and how a constitution is structured, and you have to start by trying something.

HULR: In that same article, you emphasize the importance of including tribal governments in shaping legal and policy decisions that directly affect their nations or citizens. From a legal perspective, what might a more equitable and collaborative relationship between tribal nations and the federal government look like? What kinds of changes would be needed to support that kind of partnership?

ER: Part of why I wrote this article about representation in Congress is that it has real power. Tribes have some powers – their citizens have the power to vote, particularly in states with high Native populations, and they may have economic power, sometimes even a lot of economic power. However, what is frustrating about the status quo is that these powers pale in comparison to what states get. It does, and that is very frustrating. I think the current status quo relies a lot on tribes lobbying, the same way corporations or other various interest groups lobby. It does not reflect the reality that tribes are sovereign, too. They have the unique responsibilities and challenges of governments. Tribal consultation, which is a somewhat common practice in Congress and a very common practice in the executive branch, is such a generally weak answer to that problem. It is a promise from the federal government that they will hear tribes out before doing anything. But it is not a promise that they will do anything differently after they have heard what tribes want, and that frustration is really hard for tribes. It is hard on the federal government as well because it is fundamentally more about process than power. It constantly forces these questions: Did we talk to tribes enough? Did we hear them out enough? Did we have enough meetings with them? That process forces tribes to [frame their concerns as,] “You didn’t talk to us enough” or “You didn’t have enough meetings with us” as their main complaint points, as opposed to “You just did not do what we wanted you to do, and you are doing something harmful.” I think that is a problematic mismatch. We need to come up with ways for tribes to [move beyond saying, “You did not tell us about it” or “We did not talk enough about it” and instead be able to say, “No, we really just think what you did is wrong” or “We talked about it a lot, and what you did was wrong.” There needs to be some way for tribes to have either real power and input into that choice, as part of the decision makers, or for there to be some kind of consequences for those kinds of harms that also have real power to push federal decision makers.

HULR: You also write about the need to expand the “imaginative possibilities” for American democracy, the idea that we must think beyond existing legal structures when considering tribal sovereignty. As part of that reimagining, how might early legal recognition of tribal sovereignty, particularly during the drafting of the Constitution, have altered the development of U.S. federal Indian law?

ER: I think there is recognition of tribal sovereignty in the Constitution and the original drafting of the Constitution. I think it is much more similar to the recognition that foreign countries exist and that there are other sovereigns, and we will have to deal with them. I think this transition from tribes being outside the United States to being inside the United States is something for which we have not reworked our constitutional structures to account. I think my hope in that article, and in encouraging us to expand “imaginative possibilities,” is to point out that this shift means we need to think about constitutional restructuring now that we have tribes as part of the United States. That shift should push us toward solutions that will require restructuring, but also make sense when you think about how we have all these other governments in this country, too. It raises important questions: Where do they fit? How do they fit? What power should they have? I think if we were answering those questions in a moment of pause, we would come up with very different answers than the ones that we have right now.

HULR: Related to that reimagining, in your 2021 article “The Other American Law,” you argue that tribal law is part of the American legal system but has historically been left out of mainstream legal definitions and teaching. Could you please elaborate on how this omission has shaped the way the American legal system as a whole is taught and understood?

ER: We are commonly told in law school that there are two types of governments in the United States: state and federal. But that is wrong. There are state, federal, and tribal governments. And I think a lot of people go through law school without ever having to think about tribes, and that is a problem. That omission enables the dynamic I talked about before, where people just do not see tribes. They do not think of tribes, and, when they do, they often assume that tribes are very small, weak, irrelevant, and primitive. I think that does a disservice to the growing number of people who need to understand Indian law and who work with tribal governments as part of a lot of different areas of legal practice, especially as tribes are becoming more and more powerful, both politically and economically. I also think it is intellectually irresponsible of us as legal educators to pretend that these hundreds of governments, which collectively control as much land as the state of California, are not a significant part of our system of law and governance in the United States. That is a big aim of that paper: to push back against that erasure

HULR: Looking ahead, how do you see the role of tribal governments and legal systems evolving within the broader landscape of American law? In what ways can scholars, students, and institutions contribute to strengthening and supporting that evolving role?

ER: I think right now is a really promising time. I think there are a lot more scholars of federal Indian law and tribal law who are doing really good work than there have ever been before. A lot more of us are now at some of the more elite American legal institutions, places that tend to influence the rest of legal academia by saying, “We think this is important.” And I think this is having an important effect on other institutions across the country. I think people are seeing it and realizing that this is not a crazy, novel thing. This is an obvious thing that we have been doing wrong, and I think, in that way, it is exciting. I think people are also starting to notice that tribes bring such rich legal cultures, wisdom, and tales of what not to try to achieve something, and that is all very valuable to the study of law and governance. And by ignoring it, we have been missing out. Tribes have been dismissed, erased, and delegitimized. This has led to people who could have seen and learned from tribal experience missing out. I think there is greater inclusion, and it is a promising moment to see that inclusion unfold.

HULR: Thank you so much for sharing your time and insights with me. It is exciting to hear that this is such a promising time for federal Indian law and tribal legal scholarship. Your thoughts on the growing inclusion of tribal perspectives and the recognition of tribal legal cultures as critical to the broader study of law are inspiring. I am truly grateful for the opportunity to learn from you.